To BMW salesman Robert Becker, serving customers hot dogs at a sales promotion event was “absolutely not up to par with the image of the brand,” and he mercilessly mocked his employer, a Lake Bluff, Ill., dealership, on Facebook for doing so. He was promptly fired — though the dealer denies this was the reason why.
Becker’s fate is hardly unique. Scores of other employees who made negative comments about their employers on Facebook and other social-media sites have found themselves out of jobs.
The key question before the National Labor Relations Board is whether such workplace criticism may be protected under labor laws. The NLRB has brought more than 100 cases involving some aspect of social media, and the agency’s acting general counsel, Lafe Solomon, recently issued extensive guidelines spelling out employer dos and don’ts.
But to some labor lawyers, the NLRB’s embrace of workplace social-media issues amounts to overreaching by an agency struggling to stay relevant in the face of declining union membership.
“They’ve drawn very broad boundaries to protect the ability of unions and workers to use social media,” said Robert Quackenboss, a partner at Hunton & Williams, who said he’s been getting one to two client inquiries a week about social-media policies. “The trend is to protect a very wide range of speech about the employer, co-workers and supervisors.”
For the NLRB, staking out a role as the federal cop on the social-media beat has raised the agency’s profile and expanded its portfolio. “It’s an effort by the labor board to make themselves relevant to the 94 percent of workers who are not unionized,” said Morgan, Lewis & Bockius partner Doreen Davis. “This touches all workers.…It puts the NLRB on the map.”
John Raudabaugh, a former member of the NLRB who is now an attorney at the National Right to Work Legal Defense Foundation Inc. and professor at Ave Maria School of Law, agrees.
“It’s a way to justify the agency in the modern day, when unions aren’t organizing,” he said. “They’re trying to extend the notion that ‘Don’t forget, Section 7 rights apply to employees whether they’re unionized or not.’ ”
Section 7 of the National Labor Relations Act states that employees have the right to form unions, and also to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Cases involving such nonunion “protected concerted activity” now account for about 5 percent of the agency’s caseload, according to the NLRB.
“We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times,” said NLRB Chairman Mark Gaston Pearce in a news release last month announcing a new NLRB Web page devoted to “the rights of employees to act together for their mutual aid and protection, even if they are not in a union.”
Social media has become a prime area for agency actions involving nonunion workers. The cases generally fall into two categories — those that focus on the legality of employer social-media policies (the kind typically found in employee handbooks) and those that involve workers who were fired or disciplined based on their social-media comments.
Under NLRB scrutiny, it appears that very few social-media policies pass muster. “Most employers probably have some portion of their policy in violation,” said Hogan Lovells partner Kenneth Kirschner.
For example, in the most recent NLRB guidelines, which were released on May 30, acting general counsel Solomon concluded that one company’s provision instructing workers not to “release confidential guest, team member or company information” was unlawful. That’s because the rule could “reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employees other than themselves — activities that are clearly protected by Section 7.”
In order to comply with the guidelines, lawyers say employers need to specify what sorts of confidential information can’t be revealed, such as trade secrets or information covered by attorney-client privilege.
To Kirschner of Hogan Lovells, the NLRB is “going beyond what the statute requires. I think most people understand what confidential information is. [The NLRB] is requiring a lot more specificity and detail than necessary.”
Another policy rejected by the NLRB banned “offensive, demeaning, abusive or inappropriate remarks.” The reason: “This provision proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”
The NLRB also said no to a provision requiring employees to get permission before reusing copyrighted or trademarked images, including the employer’s. This could “interfere with employees’ protected right to take and post photos of, for instance, employees on a picket line,” the NLRB guidelines state.
When the NLRB cracks down on a company for its social-media policies, said Michael Eastman, executive director of labor law policy at the U.S. Chamber of Commerce, the employer typically “wasn’t aware there was a [National Labor Relations Act] issue.…In largely nonunion environments, companies may not realize they even need to think about Section 7.”
However, there is no fine for a violation — companies just need to bring their policies into compliance. “The law is not a punitive statute,” Eastman said. Still, he noted, “No employer wants the NLRB breathing down their neck. They’d rather not have the government at their door, so they try to comply.”
Lawyers also praised the NLRB for including a sample social-media policy (reportedly that of Wal-Mart Stores Inc.) that the agency found lawful.
When NLRB brings charges involving employees who were disciplined or fired based on social-media comments, the stakes are somewhat higher. The agency has the power to force a company to rehire the worker and to provide back pay. The cases are also more fact-specific and complex and are heard by an administrative law judge and reviewed by the politically appointed labor board members — there are currently four, with one vacancy.
The case involving BMW salesman Becker, which is now pending before the board, is one that lawyers are following with interest because it shows how tenuous the connection between Facebook comments and Section 7 can be.
When Becker first complained about the hot dogs at a sales meeting, a colleague joined in, noting that the Mercedes-Benz dealership had waiters serving hors d’oeuvres at an event. Administrative Law Judge Joel Biblowitz determined that this input from the other employee was enough to make the activity concerted, even though only Becker complained on Facebook.
Further, the judge found the speech was protected because the hot dogs could have an effect on Becker’s compensation. “There may have been some customers who were turned off by the food offerings at the event and either did not purchase a car because of it, or gave the salesperson a lowering [sic] rating in the Customer Satisfaction Rating because of it; not likely, but possible,” he wrote.
In the end, though, the judge ruled for the dealership, Karl Knauz Motors Inc., because Becker made another Facebook post that same day. That post made fun of a mishap with a Land Rover at Knauz’s other dealership. The entry, detailing how a 13-year-old boy accidentally drove the vehicle over his father’s foot and into a pond, was not protected speech, the judge found, and NLRB lawyers couldn’t prove whether Becker was fired for the hot dog comments or the Land Rover post.
Brian Kurtz and James Hendricks of Ford & Harrison represent the dealer. In an interview, Kurtz noted that, to date, there hasn’t been “a definitive board decision…that delves into social media in detail.” The board decision in the Knauz case, still pending, may help provide more clarity beyond guidance from the general counsel’s office and administrative law judge decisions, he said.
Another case lawyers have flagged involves workers at Triple Play Sports Bar and Grille in Watertown, Conn., who were unhappy because their income taxes were not properly withheld. In a Facebook discussion about the taxes, one employee called her boss an asshole. Another merely clicked “like” on a comment made by a former employee threatening to call the labor board. Both workers were allegedly fired for being “disloyal.”
For Administrative Law Judge Lauren Esposito, it was an easy call that any discussion of the tax treatment of earnings was protected under Section 7.
But what was notable was that she found the employee selecting the “like” button “constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity.” She also noted that in prior cases — ones that didn’t involve social media — the board has never “deemed the protections of Section 7 to be contingent upon [an employee's] level of engagement or enthusiasm.”
Indeed, to Fenwick & West associate Allen Kato, many of the NLRB’s social-media rules “are not that much of a stretch from existing law.” Consider workers on a picket line claiming that an employer is unfair. “They’re allowed to make those type of comments to get public support,” Kato said. The NLRB is “overlaying that into social media.
“But pickets are contained and controlled,” he said. “If you post something on Facebook or a video on YouTube, it’s much more widely blasted, and a bigger deal for employers.”
Jenna Greene can be contacted at firstname.lastname@example.org.